[content warning: ableism, rape apologism, bestiality, rape of children]
First, Stubblefield used facilitated communication, a discredited way of communicating with nonverbal disabled people, to speak with DJ. Assuming for the sake of argument that facilitated communication works, she was literally his only means of communicating with the outside world; DJ did not successfully use facilitated communication with his family. His ability to get a GED, read books, even say what he wanted for dinner, was entirely dependent on her continued support. This creates a power imbalance in which sex cannot happen ethically. If she had been responsible, she would have said “I have feelings for you too, but we can’t explore them until you have another long-term facilitator who’s able to work with you.” (She would have also checked his desire for sex with her with another, naive facilitator, as is done when a disabled person who uses facilitated communication accuses someone of sexual abuse.)
Of course, facilitated communication does not work; according to the best scientific evidence, facilitated communication works something like a Oujia board, and what you get out of it is what the facilitator put in. So she raped him in a second fashion, by having sex with a nonverbal disabled person without taking the appropriate measures to ensure that he fully consented, instead relying on a pseudoscientific communication technique.
The third way that Stubblefield raped DJ is by ignoring his nonverbal communication: when she kissed him, he sat up, left the bed, and scooted out of the room. She then proceeded to perform oral sex on him. While she believed this was okay because his facilitated communication said he consented, given that facilitated communication does not work, our only means of understanding his preferences implies he did not want this.
Peter Singer has written a controversial editorial about Stubblefield’s case. Several parts of this editorial have been condemned throughout the effective altruist community: for instance, Singer’s defense of the pseudoscientific facilitated communication technique and his failure to mention either the first or the third ways in which Stubblefield raped DJ. However, one passage from his editorial has led to a great deal of argumentation:
A central issue in the trial was whether D.J. is profoundly cognitively impaired, as the prosecution contended and the court seemed to accept, or is competent cognitively but unable to communicate his thoughts without highly skilled assistance, as the defense contended. If we assume that he is profoundly cognitively impaired, we should concede that he cannot understand the normal significance of sexual relations between persons or the meaning and significance of sexual violation. These are, after all, difficult to articulate even for persons of normal cognitive capacity. In that case, he is incapable of giving or withholding informed consent to sexual relations; indeed, he may lack the concept of consent altogether.
This does not exclude the possibility that he was wronged by Stubblefield, but it makes it less clear what the nature of the wrong might be. It seems reasonable to assume that the experience was pleasurable to him; for even if he is cognitively impaired, he was capable of struggling to resist, and, for reasons we will note shortly, it is implausible to suppose that Stubblefield forcibly subdued him. On the assumption that he is profoundly cognitively impaired, therefore, it seems that if Stubblefield wronged or harmed him, it must have been in a way that he is incapable of understanding and that affected his experience only pleasurably.
This is not exactly what one would call the most lucidly written passage. Several people I respect, including Kelsey and Scott Alexander, have interpreted it differently than I do; they believe the passage says that it is theoretically possible for disabled people who can’t use language to consent to sex. I certainly hope that Singer was trying to say that and failing miserably, and I hope that he edits the article to clarify given the controversy he has engendered.
However, in the overall context of Singer’s work, I believe that a more reasonable and charitable (in that it accurately reflects Singer’s beliefs) interpretation is that Singer believes there is nothing wrong with having sex with a disabled person who can’t use language, regardless of their consent, as long as violence is not used.
Peter Singer regularly compares severely disabled people to animals; one of his most commonly used arguments in favor of animal welfare is that one would not torture a severely disabled person with the cognitive capacities of a chicken, and therefore one should not torture a chicken. He has repeatedly spoken out against speciesism, the belief that one should treat beings of equivalent capacities differently based on their species. Therefore, given that he believes that many non-language-using disabled people have similar capacities to animals, and that it is unethical to treat beings of similar capacities differently based on species, we can use his beliefs about bestiality to enlighten us about what this passage means.
Singer has written in the past about bestiality. He has explicitly outlined forms of bestiality he considers unacceptable:
Soyka’s suggestion indicates one good reason why some of the acts described in Dekkers book are clearly wrong, and should remain crimes. Some men use hens as a sexual object, inserting their penis into the cloaca, an all-purpose channel for wastes and for the passage of the egg. This is usually fatal to the hen, and in some cases she will be deliberately decapitated just before ejaculation in order to intensify the convulsions of its sphincter. This is cruelty, clear and simple. (But is it worse for the hen than living for a year or more crowded with four or five other hens in barren wire cage so small that they can never stretch their wings, and then being stuffed into crates to be taken to the slaughterhouse, strung upside down on a conveyor belt and killed? If not, then it is no worse than what egg producers do to their hens all the time.)
But sex with animals does not always involve cruelty. Who has not been at a social occasion disrupted by the household dog gripping the legs of a visitor and vigorously rubbing its penis against them? The host usually discourages such activities, but in private not everyone objects to being used by her or his dog in this way, and occasionally mutually satisfying activities may develop. Soyka would presumably have thought this within the range of human sexual variety.
This suggests that Singer may believe that bestiality is morally okay as long as it is mutually satisfying, and that all cases in which the animal initiates are certainly mutually satisfying. However, there is an intermediate case: the case in which the animal is not particularly interested in sex, but is having sex for some other reason. Singer writes:
[Rural men] may also take advantage of the sucking reflex of calves to get them to do a blowjob…
For three-quarters of the women who told Kinsey that they had had sexual contact with an animal, the animal involved was a dog, and actual sexual intercourse was rare. More commonly the woman limited themselves to touching and masturbating the animal, or having their genitals licked by it.
In this case, the animal does not desire sex. The calves are sucking as a reflex action; the dogs are presumably not licking human genitals out of a passionate desire to perform cunnilingus. (My understanding is that people who practice bestiality often put a food, such as peanut butter, on their genitals to induce the dog to lick them.) Singer does not appear to have clarified whether he considers this form of sex to be acceptable. However, given the fact that he mentions it as evidence that bestiality is quite common and does not condemn it, it seems to me that the correct way of interpreting Singer’s belief is that this too is acceptable. In short, it appears that Singer’s view is that it is always okay to have sex with an animal as long as the sex does not involve injury or pain to the animal, particularly if the animal experiences something that is prima facie rewarding (as sucking is to calves and food is to dogs).
Extending this to DJ’s case, I believe that Singer’s passage above means that as long as no injury or pain was done to DJ, and DJ experiences something that is prima facie rewarding (as oral sex is to humans), then sex with him is ethical.
Further evidence is that this explains an otherwise puzzling omission on Singer’s part. Singer says that “[DJ] was capable of struggling to resist, and, for reasons we will note shortly, it is implausible to suppose that Stubblefield forcibly subdued him.” But DJ did, in fact, resist: he attempted to leave. It’s possible that Singer is ignorant of this basic fact of the case. However, Singer himself says he has “stud[ied] the evidence advanced by Stubblefield’s attorney in support of her appeal.” When I searched Google for “anna stubblefield” on incognito mode, the above article was the second result. (The first was Singer’s own.) This is readily available information for anyone who wishes to read about the Stubblefield case. Unless we’re assuming that Singer is both a liar and grossly negligent, we should assume that he is aware of these publicly available facts of the case.
Therefore, the most logical conclusion is that Peter Singer does not consider DJ’s attempt to leave to be a sign of resistance. The idea that, in general, trying to leave isn’t a revocation of consent to sex is absurd rape apologism and I would not slander Singer by claiming he believed it. However, if Singer believes that violence or pain is what makes sex with DJ unethical, then it makes sense for him to point out that there wasn’t any violence or pain. In this context, Singer’s statement makes perfect sense.
The bestiality case illustrates this clearly. One can imagine a situation where you intend to have a calf give you a blowjob, the calf wanders off, you wait a bit for it to stay still, and then you have it give you a blowjob. It seems to me that if bestiality is unethical, this situation is unethical, and if bestiality is ethical, this situation is ethical.
The difference is that calves do not have an abstract, conceptual understanding of sex, because calves do not have an abstract, conceptual understanding of much of anything. A calf is not thinking “I have a consistent preference over time to not have that guy’s penis in my mouth and I’m going to try to communicate this preference through walking out the barn door. Oh, okay, it looks like he’s not going to give in, so I’m going to lie back and think of England.” A calf is thinking “I want to go investigate that sunbeam. Ooh! A thing to suck on!”
However, while I’m sympathetic to this model when we’re talking about sex with calves, I am very unsympathetic when we’re talking about sex with non-language-using humans. Calves have known capacities; severely disabled humans do not. To pick a very clear example: it is vanishingly unlikely that calves are capable of receptive and expressive language, with vocabularies of hundreds of thousands of words, and the only reason they’re not writing poetry to rival William Shakespeare’s is that their vocal cords aren’t shaped right. Receptive and expressive language are complex capacities and there would be absolutely no reason for them to evolve in a species without vocal cords that can produce speech.
Conversely, nearly all humans have receptive and expressive language capacities. We know that some humans retain receptive and expressive language, even if they have lost the ability to speak. For instance, many humans with cerebral palsy have difficulty controlling their mouth muscles, so they can’t speak, but they can communicate with augmentative and auxiliary communication technology. Some autistic humans are intermittently incapable of speech under stress. Therefore, a non-language-using human may lack the capacity to use language altogether, or they may understand language but have such large difficulties using it that (unlike in the case of many humans with cerebral palsy or autism) we can’t tell that they have that capacity.
Of course, language use is not a morally relevant capacity. But the same thing does apply to morally relevant capacities. How are you supposed to tell whether a person who can’t use language understands the normal significance of sexual relations between persons or the meaning and significance of sexual violation? I mean, it’s not like you can ask him.
We don’t even have a good sense of the probabilities here. It could be that every non-language-using disabled person has the cognitive abilities of a calf. It could be that every single one of them understands sexual violation. We have no way of distinguishing these two worlds.
I note that Peter Singer agrees with this argument. Inexplicably, he seems to believe that DJ can have the ability to understand sexual violation if and only if facilitated communication works as a way of communicating with him. Since presumably DJ had those capacities (if he does) before he ever met a facilitator, he could also presumably have those capacities even if he cannot communicate them.
Furthermore, it does not seem like the ability to be sexually traumatized is as complicated as all that. One-year-olds in general have a very poor understanding of consent, as one can see by their tendency to hit other toddlers to hear the interesting noises the other toddler makes, but I would expect that fucking a one-year-old would cause them no small amount of emotional harm both in the short and the long run. It certainly seems like a bad idea to decriminalize sex with toddlers on the grounds that they are incapable of giving or withholding consent.
The safest course, I believe, is to assume that DJ is a person (albeit a person with certain diminished capacities). As a person, he is capable of being sexually traumatized. This does not necessarily mean he should be consigned to celibacy. I personally agree with Scott’s proposal:
I wish there were a system in place to protect disabled people from sexual abuse while not banning all sexuality entirely. If you want to do surgery on a disabled person who can’t consent, lots of doctors and lawyers and friends and family get together and do some legal stuff and try to elicit information from the patient as best they can and eventually come to a conclusion. The result isn’t perfect, but it’s a heck of a lot better than either “no one can ever operate on a disabled person” or “any surgeon who wants can grab a disabled person off the street and do whatever operation they feel like”. If there were some process like this for sex, and they decided that DJ wanted to have sex with Anna, then (again ignoring the power dynamics issue) I think this would be better than either banning him from all sex forever, or letting her have sex with whoever she wants as long as she can make up convincing enough pseudoscience.
Notably, this does seem to not have happened here even in an unofficial way, as one can tell by the fact that the family’s response to Anna revealing that she had sex with DJ was not “woohoo, finally” but “what the FUCK?” and trying to get her to go to jail for twelve years. Which is the second reason that I’ve claimed she’s a rapist.
(The fact that Peter Singer did not say something like “while good consent practices were not used in this case and Stubblefield is a rapist, I want to be clear that it is possible for a neurotypical person to have enjoyable and enriching sex with a non-language-using person if proper care is taken to ensure that they consent” seems to me to be further evidence that my claim about what Singer means is right and he in fact thinks that Stubblefield’s actual behavior is morally acceptable.)
Finally, I’d like to address the issue of abstracting away specific details of the case to talk about underlying philosophical issues. Clearly, it should be acceptable to talk about under what circumstances it is okay for non-language-using people to have sex; clearly, the routine desexualization of intellectually and developmentally disabled people is a grave harm to them.
However, let’s imagine that Peter Singer had instead written an article entitled Who Is The Victim In The Brock Turner Case? In this article, in addition to using pseudoscience to claim that Brock Turner’s victim actually consented, Singer writes that it’s a mistake to assume that sex with unconscious people is unethical just because they can’t verbally revoke consent.
Of course, it is possible to ethically have sex with unconscious people. Many couples enjoy waking each other up with sex. It is very silly for some sex-positive feminists to criticize it for lack of affirmative consent. But it seems to me that making this argument in the context of, you know, an actual rape victim is absurdly offensive and insensitive. Doing so in an article called Who Is The Victim In The Brock Turner Case? in which you argue for clemency for Brock Turner leads one to the conclusion that you’re not just abstractly considering important issues but, in fact, arguing that the particular rape which actually happened is morally unobjectionable and should not be punished.
And it seems to me to be equally objectionable to argue against protests of Who Is The Victim In The Brock Turner Case? by pointing out that it’s harmful to say that waking people up with a blowjob is rape and then saying it’s a shame that Singer didn’t do his homework about the details of the case, whereupon he would realize that Brock Turner did not in fact finger his girlfriend with her previous consent with the intent of allowing her to wake up pleasantly. Brock Turner’s case is clearly and obviously not the same thing as waking up your partner by fingering them, and it is offensive, morally wrong, and worst of all extremely unenlightening to discuss them in the same place.